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The Law of Negligence as Reported in The Times, 1785–1820

  • James Oldham
Extract

Historically, the clear recognition by the courts that all adults in public intercourse owe a duty of reasonable care to avoid injuring others has been seen as an early nineteenth century development. Occasionally it is recognized that what is known about the emergence of the tort of negligence in English law comes almost entirely from the printed reports of civil (plea side) cases tried in the three common law courts (King's Bench, Common Pleas, and Exchequer). It was not until the 1790s that regular printed reports of jury trials (or nisi prius cases, as they were called) began, and even then, enlightenment from the nisi prius reports was limited. Most of those reports were sketchy, and very few included instructions given to the jury by the trial judge. More importantly, the reports covered only a small fraction of the jury trials that were conducted by the common law courts. The overwhelming majority of civil jury trials ended with the jury verdict (or an occasional nonsuit), with no post-trial proceedings, and what happened in many thousands of these plea-side jury trials in the late eighteenth and early nineteenth centuries has been something of a black hole in the historical record.

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oldham@georgetown.edu
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1. See Baker, John H., “Trespass, Case, and the Common Law of Negligence 1500–1700,” in Negligence: The Comparative Legal History of the Law of Torts, ed. Schrage, Eltjo J.H. (Berlin: Duncker & Humblot, 2001), 47 (quoting the well-known 1926 article by Winfield, Percy, “The History of Negligence in the Law of Torts,” Law Quarterly Review 42 (1926): 184201, at 185—“Not until the nineteenth century” can the law of negligence be said to have taken coherent shape); Ibbetson, David, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 170 (“The early stirrings of the use of the duty of care in the analysis of negligence cases occurred towards the beginning of the nineteenth century”); Lobban, Michael, Part Four, in The Oxford History of the Laws of England, 12 vols. (Oxford: Oxford University Press, 2010), ch. 2, XII: 904 (the principle that “Every man ought to take reasonable care that he does not injure his neighbor” “remained largely undeveloped at the start of our period [1820]”). As observed by Sir John Baker, “The apparent explosion in the number of negligence cases in the latter part of George III's reign is in part an illusion caused by the beginning of nisi prius reporting in the 1790s.” Baker, John H., An Introduction to English Legal History, 4th ed. (London: Butterworths LexisNexis, 2002), 412.

2. Reports of nisi prius cases published in the 1790s were by Thomas Peake and Isaac Espinasse and the nisi prius series was continued in the nineteenth century by Campbell, John, Starkie, Thomas, and Holt, Francis. Oldham, James, “Law-making at Nisi Prius in the Early 1800s,” Journal of Legal History 25 (2004): 222.

3. See ibid., 222–25.

4. See Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, 2 vols. (Chapel Hill: University of North Carolina Press, 1992), ch. 18, 1107–40.

5. Ellenborough's trial notes are among the manuscript holdings of the Harvard Law School. They are available in microfiche as Section V of Stage VI of Baker, John H., ed. English Legal Manuscripts (Leiden: Inter Documentation Company, 1987), supplemented 1995.

6. See Oldham, “Law-making at Nisi Prius,” 230–31, Tables 2 and 3.

7. Ibid., 232–33, Tables 4 and 5. Two hundred and eighty-seven of the cases can be identified as negligence disputes, although none has been transcribed. (Ellenborough's notes are formidably messy, even at times impenetrable beyond the case captions.)

8. See text at notes 12–18.

9. For an analysis of legal coverage in selected London newspapers during the years when Lord Mansfield was chief justice, see Oldham, James, “Law Reporting in the London Newspapers 1756–1786,” American Journal of Legal History XXXI (1987): 177, and for details generally about newspaper reporting of legal proceedings in London, see Oldham, James, “The Legal Profession and the Popular Press,” in Cultural History of Law in the Age of Enlightenment, ed. Probert, Rebecca (London: Bloomsbury Press, forthcoming 2018).

10. A 200-year run of The Times from its founding in 1785 through 1985 is now accessible in a word-searchable digital database in The Times Digital Archive 1785–1985.

11. Smart, William, Economic Annals of the Nineteenth Century 1801–1820, vol. I (London: Macmillan & Co., Ltd., 1910), 4041.

12. Bayne-Powell, Rosamond, Eighteenth-Century London Life (London: John Murray, 1937), 357.

13. Ibid., 363.

14. Ibid.

15. Ibid., 368. See also Barker, Hannah, Newspapers, Politics, and Public Opinion in Late Eighteenth Century England (Oxford: Clarendon Press, 1998), 2, 27, 29.

16. Hay, Douglas and Rogers, Nicholas, Eighteenth-Century English Society (Oxford: Oxford University Press, 1997), 61.

17. Ibid., 62.

18. Black, Jeremy, The English Press in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 910.

19. See Langbein, John H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1168.

20. For a full description, see Colquhoun, Patrick, A Treatise on the Police of the Metropolis, 5th ed. (London: C. Dilly, 1797), 9399.

21. Hay and Rogers, Eighteenth-Century English Society, 145.

22. Porter, Roy, London, A Social History (London: Hamish Hamilton, 1994), 138–39. Porter describes the Upper Pool as a section of the Thames below London Bridge.

23. See, Ashton, Thomas S., An Eighteenth-Century Industrialist: Peter Stubs of Warrington 1756–1806 (Manchester: Manchester University Press, 1939), ch. 7 (“The Carriers”), 86–87, 94, 97.

24. Porter, A Social History, 135.

25. Ibid.

26. Burgess, Anthony, “Historical Commentary,” in Coaching Days of England (London: Paul Elek, 1966), 11.

27. Ibid., 13.

28. Ibid., 15.

29. Ibid.

30. Ibid., 16.

31. According to Sir John Baker, “[I]t was the peculiar property of actions on the case that they were the only personal actions in which the plaintiff was allowed to state with any sort of particularity what he alleged had actually happened.” Baker, “Trespass, Case, and the Common Law of Negligence 1500–1700,” 50. Here is an example from Lord Mansfield's trial notes for July 30, 1785: the caption describes a lawsuit by Thomas Waite Whalley, Gentleman, against John Weeks, and the cause of action is given as, “Case, for negligently & furiously driving defendant's coach against the plaintiff, who was on horseback, whereby he was thrown on the ground & his leg bruised.” Scone Palace manuscripts, 501 nb 134 (the volume numbers of Lord Mansfield's trial notebooks were assigned by the National Register of Archives [Scotland]––see Oldham The Mansfield Manuscripts, at I: xxix).

32. For speculation about the movement from Trespass to Case, see Baker, “Trespass, Case, and the Common Law of Negligence 1500–1700,” 62–71. Baker concluded that possibly “by 1700 judges and practitioners were beginning to recognize a new general principle,” that every man “was ‘answerable for all mischief proceeding from his neglect or his actions, unless they were of unavoidable necessity,’” citing Mason v. Keeling, 1 Ld. Raym, 606, 607 (1700). Nonetheless, “Negligence was still an elusive and non-technical notion, because it remained in most cases within the exclusive province of the ordinary laymen who sat on juries” (ibid., 70–71).

33. As Sir John Baker observed, “The metaphysics of directness were a constant trouble to courts and practitioners…Blackstone resorting even to Newtonian physics in his search for a scientific answer.” Baker, Introduction to English Legal History, 412 (citing Scott v. Shepherd [1773], 2 Bl. W. 892, per Blackstone [dissenting]).

34. See, for example., Ogle v. Barnes, 8 T.R. 188 (1799).

35. Williams v. Holland, 10 Bing. 112 (1833). Baker, Introduction to English Legal History, 413; and Ibbetson, David, “The Tort of Negligence in the Common Law in the Nineteenth and Twentieth Centuries,” in Negligence: The Comparative Legal History of the Law of Torts, ed. J.H., Eltjo Schrage (Berlin: Duncker & Humblot, 2001), 229, 230.

36. From an inspection of daily issues of The Times from 1785 to 1820, I have identified approximately ninety cases in which negligence was the central issue. Approximately three quarters of these involved collisions, and most of the others involved the transport of goods.

37. Each of the three common law courts––King's Bench, Common Pleas, and Exchequer––conducted jury trials presided over by one of each court's four judges, ordinarily the chief justices of King's Bench and Common Pleas, and the chief baron of Exchequer.

38. “Law Report: Ammons v. Payne,” The Times, September 25, 1789, 3. The Times Digital Archive 1785–1985.

39. Ibid. The verdict was for the plaintiff for £100.

40. See, for example, “Law Report: Gunn v. White,” The Times, December 1, 1801, 3. The Times Digital Archive 1785–1985 (according to one witness, the defendant was “very drunk”); “Law Report: Davy v. Chamberlain,” The Times, December 15, 1802, 3. The Times Digital Archive 1785–1985 (it was proved “that the Defendants were about half way between the extremes of sobriety and drunkenness”); “Law Report: Watts v. Fermor,” The Times, December 5, 1809, 3. The Times Digital Archive 1785–1985 (the accident occurred while the defendants were returning to town from the Epsom races, riding in a barouche and four, driven by the defendant's coachman while the plaintiff was driving a friend in his gig; the defendant's valet testified “that the Plaintiff did not appear much hurt, but very drunk”).

41. “Law Report: Lewsiner v. Smith,” The Times, February 17, 1800, 3. The Times Digital Archive 1785–1985.

42. The plaintiff won the verdict.

43. See Oldham, “Law-making at Nisi Prius,” 232–33, Tables 4 and 5.

44. “Law Report: Orde v. Beaufoy,” The Times, June 15, 1802, 3. The Times Digital Archive 1785–1985.

45. The jury verdict was for the plaintiff, £15, 15s.

46. “Law Report: Williams v. Webb,” The Times, June 9, 1810, 2. The Times Digital Archive 1785–1985.

47. The jury awarded the plaintiff the amount that had been requested, £100.

48. “Law Report: Wilson v. Meux,” The Times, December 7, 1811, 3. The Times Digital Archive 1785–1985. The plaintiff, a surgeon, sued for harm caused by the negligent driving of the defendant's servant of a one horse dray that crashed into the plaintiff's gig.

49. According to The Times, this was a common jury, to be distinguished from a special jury, which would be composed of merchants and gentlemen and would cost extra. On the trajectory of the use of special juries, see Oldham, James, “The Origins of the Special Jury,” Chicago Law Review 50 (1983): 137; and Oldham, James, “Special Juries in England: Nineteenth Century Usage and Reform,” Journal of Legal History 8 (1987): 148.

50. The jury awarded the plaintiff £30.

51. “Law Report: Mannington v. Nicholls,” The Times, December 14, 1813, 2. The Times Digital Archive 1785–1985.

52. Ibid. (emphasis added). Even though the child was allegedly crippled for life, the jury awarded only £10. See the description in the text following n. 136.

53. “Law Report: Perry v. Hunswick,” The Times, June 30, 1792, 3. The Times Digital Archive 1785–1985.

54. The jury verdict was for the plaintiff, £100.

55. “Law Report: Lucas v. Willan,” The Times, July 19, 1810, 3. The Times Digital Archive 1785–1985.

56. No relation to the eighteenth-century Chief Justice of King's Bench, Lord Mansfield.

57. Emphasis by The Times.

58. 28 George III, c. 57. These regulations were augmented by a second statute enacted in 1790. 30 George III, c. 36.

59. “Law Report: Wright v. Harris,” The Times, December 30, 1793, 4. The Times Digital Archive 1785–1985.

60. A similar case came before Lord Kenyon and the Court of King's Bench almost exactly a year later, and again Lord Kenyon complained that, “The conduct of the drivers of stage-coaches is shameful,” adding, “I shall not give evidence in this cause; but, not very long ago, I counted fifteen outside passengers on a coach going up St. Martin's Lane.” “Law Report: English v. Mountain,” The Times, December 29, 1794, 3. The Times Digital Archive 1785–1985.

61. “Law Report: Lewis v. Waldegrave,” The Times, December 27, 1810, 4. The Times Digital Archive 1785–1985.

62. “Law Report: Whitby v. Hill,” The Times, June 30, 1817, 3. The Times Digital Archive 1785–1985.

63. I have located reports of at least twenty-six such cases in The Times for the years in question. Jury verdicts in twenty-two of the twenty-six cases were for the plaintiff, and four were for the defendant. Only three of the twenty-six cases also appear in the standard printed reports. All but one of the twenty-six cases were tried in the Court of King's Bench; the twenty-sixth was in Common Pleas.

64. “Law Report: Roxey v. Fenwick,” The Times, February 26, 1800, 3. The Times Digital Archive 1785–1985.

65. Also, some counsel were avoided because they had no such knowledge. See Baker, John, “Legal Process as Reported in Correspondence,” in Law and Legal Process, Dyson, Matthew and Ibbetson, David, eds. (Cambridge: Cambridge University Press, 2013), 246, 254 (quoting from one of Professor Baker's own manuscripts a December 6, 1791 letter from a firm of Grays Inn solicitors to Newcastle solicitor Charles Wren, including the following candid advice: “We think Bearcroft will manage the cause badly, as he is very lame in nautical matters, and is besides deaf, which is a considerable disadvantage where anything depends on a tight cross-examination of the witnesses”). Edward Bearcroft was an aging barrister, having been made King's Counsel on July 24, 1772. See Sir Sainty, John, A List of English Law Officers, King's Counsel and Holders of Patents of Precedence (London: Selden Society, 1987), 95.

66. For a discussion of special juries (often made up entirely or predominantly of merchants), see Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 2227.

67. “Law Report: The Owner of the Judy Randolph against the Owner of the Petersfield,” The Times, October 12, 1787, 3. The Times Digital Archive 1785–1985.

68. “Law Report: Clarke v. Hamlock,” The Times, June 22, 1791, 3. The Times Digital Archive 1785–1985.

69. The jury returned a verdict for the plaintiff with £500 damages.

70. “Law Report: Drury v. Turner,” The Times, December 10, 1791, 4. The Times Digital Archive 1785–1985.

71. “Law Report: Jones v. Tarbut,” The Times, December 21, 1793, 3. The Times Digital Archive 1785–1985.

72. The jury returned a verdict for the plaintiffs, but The Times reported on February 11, 1794 that a motion for new trial was argued before the Court of King's Bench at Westminster Hall on February 10, and although Lord Kenyon was of the opinion that the motion should be denied, the three junior judges thought otherwise, so that “the defendant is entitled to new Trial.” “Law Report: Jones v. Tarbut,” The Times, February 11, 1794, 3. The Times Digital Archive 1785–1985. No record of such a new trial has been located; probably the case was settled.

73. “Law Report: Addison v. Overend,” The Times, December 25, 1795, 4. The Times Digital Archive 1785–1985. An account of a subsequent hearing in this case during Trinity term 1796, appeared in the printed reports (6 T.R. 766, [1796]), but it dealt only with a procedural question.

74. The jury returned a verdict for the plaintiff with £350 damages.

75. “Law Report: Edmunds v. Surtees,” The Times, December 21, 1799, 2–3. The Times Digital Archive 1785–1985.

76. “Law Report: Colly v. Hurry,” The Times, June 13, 1800, 3. The Times Digital Archive 1785–1985.

77. Two more “rules of the road” cases show a different type of difficulty that perplexed the courts: the simple question of when, as a matter of safety, ships were by custom supposed to have lights burning during dark nighttime hours. See Russell v. Smythan (lights not essential) and Roper v. Daniel (lights not required on an armed cutter patrolling the English Channel [prompting an editorial protest in The Times following the case report]). “Law Report: Russell v. Smythan,” The Times, July 26, 1787, 3. The Times Digital Archive 1785–1985. “Law Report: Roper v. Daniel,” The Times, December 26, 1799, 4. The Times Digital Archive 1785–1985.

78. See, for example, Dobbs, Dan B., The Law of Torts (St. Paul: West Group, 2000), sec. 134(1)(a), 315–16.

79. “Law Report: Hewitt v. Gray,” The Times, May 31, 1819, 3. The Times Digital Archive 1785–1985.

80. The plaintiff was described as “a widow lady, of moderate fortune, residing in Windsor-castle.” She recovered a verdict of £300.

81. Parliament had amended the statutory regulations in 1806, 46 G. III, c. 136, to allow a maximum of twelve outside passengers during spring and summer months on coaches drawn by at least four horses.

82. “Law Report: White v. Boulton,” The Times, August 3, 1791, 4. The Times Digital Archive 1785–1985.

83. The case of Harris v. Wilson was apparently unreported.

84. “Law Report: Stuchburg v. Walker,” The Times, July 5, 1803, 2. The Times Digital Archive 1785–1985.

85. “Law Report: Clay v. Wood,” The Times, July 15, 1803, 3. The Times Digital Archive 1785–1985, also reported at 5 Esp. 44.

86. The jury verdict was for the plaintiff, £47, 5s, the value of the horse.

87. Two later cases in the printed reports, one in King's Bench, the other in Common Pleas, appear to endorse contributory negligence as a bar to recovery. See Butterfield v. Forrester, 11 East 60 (1809); Flower v. Adam, 2 Taunt. 314 (1810).

88. “Law Report: Bannister v. Spooner,” The Times, March 5, 1818, 3. The Times Digital Archive 1785–1985.

89. “Law Report: The Neptune v. The Scipio,” The Times, April 7, 1788, 3. The Times Digital Archive 1785–1985.

90. “Law Report: Old v. Tulloch,” The Times, March 1, 1814, 2. The Times Digital Archive 1785–1985.

91. Scott v. Shepherd, 2 B1.W. 892; 3 Wils. K.B. 403 (1773).

92. Blackstone's forceful dissent is well known, although Justice Gould was the realist, declaring that, “The line is very nice between case and trespass…I am persuaded that there are many instances wherein both or either will lie.” 2 Bl. W. at 898.

93. The verdict was for the plaintiff, £100, “subject to a reference to James Gibson, Esq., as to the value of the mast.”

94. Clearly related to the law governing common carriers is the law of bailments, dealing with the common law principles governing those who are voluntary or paid custodians of other persons’ personal property. Indeed, the “ordinary care” standard that is the usual yardstick for negligence in the law of torts is often attributed to the slim book authored by Sir William Jones (An Essay on The Law of Bailments, 1781; see especially the 2004 edition by David J. Ibbetson, published by The Welsh Legal History Society, Bangor, England). Bailment and common carrier cases to some extent have been invoked interchangeably as precedents, but to keep the present article within reasonable limits, bailment cases are not discussed. Also set aside are cases involving wharfingers.

95. See Oldham, The Mansfield Manuscripts, II:1114–17.

96. “Law Report: Proprietors of the Stafordshire Navigation v. Wood,” The Times, April 26, 1785, 3. The Times Digital Archive 1785–1985. The case was also reported by Espinasse, sub nom. Proprietors of the Trent Navigation v. Wood, 3 Esp. 127 (1785).

97. In Espinasse's report, Lord Mansfield said he thought “there was some sort of negligence here” and Justice Ashhurst agreed, saying that “the carrier should have been more cautious.” Justice Buller said, “I think there was a degree of negligence in point of fact, but the negligence in point of law was sufficient.” 3 Esp. at 131–32 (1785).

98. “Law Report: Buller v. Fisher,” The Times, September 29, 1798, 4. The Times Digital Archive 1785–1985. The case was also reported in The Times on November 17, 1798, 3, and in the printed reports at Peake's Additional Cases 183 (1799) and 3 Esp. 67 (1799).

99. “Law Report: Fregleton v. Godbehere and Ibberson,” The Times, July 1, 1785, 3. The Times Digital Archive 1785–1985.

100. “Law Report: Dennis v. Proprietors of the Northampton Stage Coach,” The Times, December 17, 1787, 3. The Times Digital Archive 1785–1985.

101. “Law Report: Jardin v. Mountain,” The Times, May 16, 1792, 3. The Times Digital Archive 1785–1985.

102. “Law Report: Burton v. Bolton,” The Times, June 4, 1792, 2. The Times Digital Archive 1785–1985. According to The Times, the case was presented to a common jury.

103. “Law Report: Johnson v. Ottadfield,” The Times, July 11, 1803, 3. The Times Digital Archive 1785–1985.

104. A dark beer resembling stout.

105. “Law Report: Johnson v. Ottadfield,” The Times, July 11, 1803, 3 (see note 103).

106. Bodenham v. Bennett, 4 Price 31 (1817).

107. Nicholson v. Willan, 5 East 507 (1804).

108. Bodenham, 4 Price at 33.

109. Nicholson, 5 East at 513–514. Parliament did eventually take action in 1830, but the legislation validated the limited liability practice (though with a £10 maximum instead of £5), quite the opposite of what Lord Ellenborough had hoped for. See note 120 and the explanatory sentence in the text.

110. For two exemplary cases reported briefly by Campbell (but not in The Times), see Cohen v. Bolton, 2 Camp. 108 (1809) and Butler v. Hearne, 2 Camp. 415 (1810).

111. Clayton v. Hunt, 3 Camp. 27 (1811).

112. The plaintiff had a verdict for £21.

113. “Law Report: Clayton v. Hunt,” The Times, November 12, 1811, 3. The Times Digital Archive 1785–1985.

114. Ibid.

115. Beck v. Evans, 16 East 244 (1812).

116. “Law Report: Hann v. Fagg,” The Times, November 30, 1816, 3. The Times Digital Archive 1785–1985.

117. The plaintiff recovered a verdict of £10, 8s, 3d.

118. “Law Report: Currey v. Willan,” The Times, July 3, 1818, 3. The Times Digital Archive 1785–1985.

119. In November 1818, Justice Abbott would become Lord Ellenborough's successor as chief justice of King's Bench and would serve in that capacity for 14 years. For a common carrier case tried by Justice Abbott after he became chief justice in which he declared that carriers “were bound to be particular in using all possible diligence in seeing that the property committed to their care was delivered as directed,” see Birkett v. Willan, 2 Barn. & Ald. 356 (1819), reported in The Times on February 5, 1819 as Buchan v. Willan, and on July 24, 1819 as Burkett v. Willan. “Law Report: Buchan v. Willan,” The Times, February 5, 1819, 3. The Times Digital Archive 1785–1985. “Court of King's Bench, Friday, July 23: Burkett v. Willan,” The Times, July 24, 1819. The Times Digital Archive 1785–1985. Also, for useful recapitulations of the case law in the printed reports on the scope of the £5 notice practice, see Garnett v. Willan, 5 Barn. & Ald. 53 (1821), opinions by Justices Bayley, Holroyd, and Best (Chief Justice Abbott was at the Old Bailey and did not participate). For the views of the Court of Common Pleas, see Smith v. Horne, Holt 643 (1817), also reported at 8 Taunt. 144 (1818) (the £5 notice is defeated by a carrier's gross negligence), and “Law Report: Wood v. Waterhouse,” The Times, December 21, 1819, 3. The Times Digital Archive 1785–1985 (a £5 notice is ineffective unless the shipper's attention is specifically directed to it).

120. 1 Will. IV, c. 68.

121. “Law Report: Clarke v. Pickford,” The Times, July 23, 1800, 2. The Times Digital Archive 1785–1985.

122. A number of examples have already been given; namely, Drury v. Turner (see note 70); Dennis v. Proprietors of the Northampton Stage Coach (see note 100); Jardin v. Mountain (see note 101); Johnson v. Ottadfield (see note 103); Cohen v. Bolton (see note 110); Clayton v. Hunt (see note 113); Hann v. Fagg (see note 116), and Currey v. Willan (see note 118).

123. See, for example, Clay v. Wood (note 85) and Colly v. Hurry (see note 76).

124. “Law Report: Owners of the Bon Adventure v. Owners of the Betsey,” The Times, March 3, 1792, 3. The Times Digital Archive 1785–1985.

125. “Law Report: Perry v. Bouchier,” The Times, December 9, 1814, 3. The Times Digital Archive 1785–1985.

126. Altogether the total was £75.

127. See, for example, “Law Report: Waker v. Giley,” The Times, March 5, 1795, 4 (referred to Mr. Lowten to ascertain the amount of the damages); Edmunds v. Surtees (see note 75); (referred to Mr. Vaux to ascertain the quantum of damages); “Law Report: Newton v. Everard,” The Times, March 4, 1812, 4 (referred to Mr. Campbell); Old v. Tulloch, (see note 90); (referred to James Gibson, Esq.); “Law Report: Curling v. Smith,” The Times, February 25, 1808, 3 (damages to be ascertained by arbitrators); “Law Report: Mitchel v. Coape,” The Times, December 21, 1814, 3 (“referred”); “Law Report: Butcher v. Campbell,” The Times, December 24, 1819, 4 (damages “to be ascertained out of Court”). The Times Digital Archive 1785–1985.

128. Whitby v. Hill (see note 62).

129. See, for example, English v. Mountain (see note 60) (the plaintiff “was ready to put an end to this cause” if the defendant would pay his expenses of £53 for surgeons and physicians who treated his injured son).

130. “Law Report: Newcombe v. Robert,” The Times, July 20, 1815, 3. The Times Digital Archive 1785–1985.

131. Hewitt v. Gray (see note 79).

132. Watts v. Fermor (see note 40).

133. “Law Report: Bailey v. Wilson and Levi,” The Times, June 10, 1805, 3. The Times Digital Archive 1785–1985.

134. In his Introduction to English Legal History, Baker observes that in serious accident cases in the late eighteenth and early nineteenth centuries, “no one thought of claiming damages for loss of prospects or the cost of long-term care.” Baker, Introduction, 412. Yet the case reports from The Times suggest that juries occasionally did make such allowances in damage awards, even occasionally as encouraged by the presiding judge.

135. “Law Report: Ingham v. Chopping,” The Times, July 25, 1812, 2, Essex assizes. The Times Digital Archive 1785–1985.

136. Williams v. Webb (see note 46).

137. Mannington v. Nicholls (see note 51).

138. “Law Report: Palliser v. Page,” The Times, July 1, 1793, 3. The Times Digital Archive 1785–1985.

139. “Law Report: Perry v. Hunswick,” The Times, June 30, 1792, 3 (see note 53).

140. “Law Report: Baker v. Boulton,” The Times, December 9, 1808, 3. The Times Digital Archive 1785–1985. Also reported at 1 Camp. 493 (1808).

141. Baker, 1 Camp. 493.

142. Ibid.

143. See Oldham, James, “Sir Lloyd Kenyon (1732–1802): Preaching from the Bench,” in Great Christian Jurists, Studies in Law and Christianity, ed. Helmholz, Richard and Hill, Mark (Cambridge: Cambridge University Press 2018), 237.

144. White v. Boulton (see note 82).

145. “Law Report: Matthews v. West Middlesex Water-Works,” The Times, June 11, 1813, 3. The Times Digital Archive 1785–1985. Also reported at 3 Camp. 403 (1813).

146. See Sayer, Joseph, The Law of Damages (Dublin: J. Moore, 1792), 238. (“It is laid down, that the Jury, by whom the Issue is tried, cannot assess Damages to a greater Amount than the Damages alleged by the Plaintiff.”)

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